New HampshireDepartment of JusticeOffice of the Attorney General

News Release

For Immediate Release
January 19, 2022

Kevin P.J. Scura, Attorney | (603) 271-8368

Attorney General John Formella Urges FDA to Preserve State Regulation of Over-the-Counter Hearing Aids

Concord, NH - Attorney General John Formella joined a bipartisan coalition of 42 states and territories urging the U.S. Food and Drug Administration to preserve state authority to enforce their consumer protection laws in connection with the sale of over-the-counter hearing aids.

The FDA is currently considering a proposal that would establish for the first time a new category of over-the-counter hearing aids that would allow such devices to be sold directly to consumers without a medical exam or fitting by an audiologist.

Currently, all 50 states have professional licensing requirements for selling hearing aids, and many states have important protections for hearing aid consumers, including mandatory warranties and returns and advertising restrictions. The attorneys general caution that rules currently under review by the FDA may unintentionally hinder those important consumer protection efforts, undermining states’ abilities to ensure safe and affordable access to hearing aids. The attorneys general urge the FDA to make explicit that their federal rule will not preempt these critical state consumer protections.

“While the FDA’s proposed rule offers consumers much needed relief in the form of more affordable and accessible hearing aids, it could have unintended negative consequences on our constituents. The proposed rule includes broad language that could be interpreted to repeal virtually all the state-requested exemptions from preemption issued by the FDA since 1980 – even those related exclusively to non-OTC hearing aids. Such language could create unneeded confusion and the potential for unnecessary litigation,” the comment letter states.

”We are happy to join this effort to preserve New Hampshire’s ability to protect hearing aid consumers,” said Attorney General Formella. “The FDA should clarify its rule to avoid confusion and to preserve existing New Hampshire laws to the extent possible.”

The attorneys general further urge the FDA to strengthen age verification processes to protect children under 18 and make it clear that over-the-counter hearing aids are only appropriate for those with mild to moderate hearing loss.

“Additionally, we are concerned with the inadequate age verification processes mandated and deficient labeling requirements. Without these proper guardrails to protect consumers’ health, OTC hearing aids could result in hearing loss or other consumer harm. The FDA should mandate age verification processes to protect those under 18 and ensure proper labeling to make clear that OTC hearing aids are only for those with mild to moderate hearing loss,” the attorneys general state.

The comment letter was led by Connecticut Attorney General William Tong and Ohio Attorney General Dave Yost, and joined by the attorneys general of Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin.

Click here to access the letter to the FDA.  Portable Document Format Symbol

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New Hampshire Department of Justice
1 Granite Place South | Concord, NH | 03301
Telephone: 603-271-3658